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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
(as amended on August 8, 2000)
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1998 between
St. Xxxxxxx Capital Corporation (the "Company"), a Wisconsin-chartered
corporation, St. Xxxxxxx Bank, F.S.B. (the "Bank"), a federally-chartered
savings and loan and wholly-owned subsidiary of the Company, their respective
successors and assigns, and Xxxxx X. Xxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the savings and loan industry has substantially
benefited the Bank and Company and whose continued employment as an executive
member of their respective management teams in the positions of Executive Vice
President for the Bank and Executive Vice President for the Company, ("Corporate
Position") will continue to benefit the Bank and Company in the future; and
WHEREAS, the parties are mutually desirous of entering into this
Agreement setting forth the terms and conditions for the employment relationship
between the Bank, Company (sometimes collectively referred to herein as the
"Employers"), and Executive; and
WHEREAS, the respective Boards of Directors of the Employers have
approved and authorized their entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Bank and Company shall continue to employ Executive,
and Executive shall continue to serve the Bank and Company, on the terms,
conditions and for the period set forth in Section 2 of this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of October 1, 1998 (the Commencement Date) and expire
on the third anniversary of the date immediately preceding the Commencement
Date, unless sooner terminated as provided herein; provided that, on each date
immediately preceding the anniversary of the Commencement Date, the term of
employment may be extended by action of the Bank's and Company's Boards of
Directors, following an explicit review by said Boards of the Executive's
performance under this Agreement (with appropriate documentation thereof and
after taking into account all relevant factors including Executive's performance
hereunder), to add one additional year to the remaining term of employment
annually restoring such term to a full three-years. The Board of Directors or
Executive shall each provide the other with at least ninety (90) days' advance
written notice of any decision on their respective parts not to extend the
Agreement on any date immediately preceding an anniversary of the Commencement
Date. The term of employment as in effect from time to time hereunder shall be
referred to as the "Employment Term".
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3. Positions and Duties. Executive shall serve the Bank and Company,
respectively, in his Corporate Position, reporting directly to their Chief
Executive Officers and serving as a member of the Bank's and Company's
Management Committees and being generally responsible to assist in the
formulation of their business and personnel policies, rendering executive,
policy-making and other management services of the type customarily performed by
persons serving in similar capacities at other institutions, together with such
other duties and responsibilities as may be appropriate to Executive's position
and as may be from time to time determined by the Bank's and Company's Boards of
Directors to be necessary to their operations and in accordance with their
bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank the compensation and benefits
set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive from Employers a base salary ("Base Salary") in such amount as
may from time to time be approved by their Boards of Directors. The
Base Salary shall at no time be less than $123,850 per annum, payable
by the Bank and Company in such proportion as shall be determined by
their Boards of Directors. The Base Salary may be increased from time
to time as determined by the Employers' Boards of Directors, provided
that no such increase in Base Salary or other compensation shall in any
way limit or reduce any other obligation of the Employers under this
Agreement. Once established at a specified annual rate, Executive's
Base Salary shall not thereafter be reduced except as part of a general
pro-rata reduction in compensation applicable to all Executive
Officers; provided, however, that no such reduction shall be permitted
following a "change in control" as defined herein. Executive's Base
Salary and other compensation shall be paid in accordance with the
Employers' regular payroll practices as from time to time in effect.
For purposes of this Agreement, the term "Executive Officers" shall
mean all officers of the Bank and/or Company having a written
Employment Agreement.
(ii) Bonus and Incentive Plans. Executive shall be entitled,
during the Employment Term, to participate in and receive payments from
all bonus and other incentive compensation plans (as currently in
effect, as modified from time to time, or as subsequently adopted);
provided, however, that nothing contained herein shall grant Executive
the right to continue in any bonus or other incentive compensation plan
following its discontinuance by the Board or Boards (except to the
extent Executive had earned or otherwise accumulated vested rights
therein prior to such discontinuance). In addition, Executive shall
participate in all stock purchase, stock option, stock appreciation
right, stock grant, or other stock based incentive programs of any type
made available by Employers to their Executive Officers. The Employers
shall not make any changes in such plans, benefits or privileges which
would adversely affect Executive's rights or benefits thereunder,
unless such change occurs pursuant to a program applicable to all
Executive Officers of the Employers and does not result in a
proportionately greater adverse change in the rights and benefits of
Executive as compared with other Executive Officers.
(iii) Other Benefits. During the Employment Term, Employers
shall provide to Executive all other benefits of employment (or, with
Executive's consent, equivalent
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benefits) generally made available to other Executive Officers. Such
benefits shall include participation in any group health, life,
disability, or similar insurance program and in any pension,
profit-sharing, Employee Stock Ownership Plan ("ESOP"), 401(k) or other
or similar retirement program. Employers shall continue any individual
insurance plans or deferred compensation agreements in effect on the
Commencement Date and Executive shall be entitled to use of an
automobile under the terms of such Employer automobile policy as is
maintained in effect (or as amended from time to time.
Executive shall receive vacation, sick time, personal days and other
perquisites in the same manner and to the same extent as provided under
the Employers' policies as in effect from time to time for other
Executive Officers. Employers shall also reimburse Executive or
otherwise provide for or pay all reasonable expenses incurred by
Executive in furtherance of or in connection with the business of
Employers, including but not by way of limitation, travel expenses,
reasonable entertainment expenses (whether incurred at Executive's
residence, while traveling or otherwise), and tax preparation fees
pursuant to established reimbursement guidelines, subject to such
reasonable documentation and other limitations as may be imposed by the
Boards of Directors of the Employers.
Nothing contained herein shall be construed as granting
Executive the right to continue in any benefit plan or program, or to
receive any other perquisite of employment provided under this
subsection 4(iii) following termination or discontinuance of such plan,
program or perquisite by the Board (except to the extent Executive had
previously earned or accumulated vested rights therein).
5. Termination Other Than Following a Change-In-Control. This Agreement
may be terminated, subject to payment of the compensation and other benefits
described below, upon occurrence of any of the events described herein. In case
of such termination, the date on which Executive ceases to be employed under
this Agreement, after giving effect to any prior notice requirement, is referred
to as the "Termination Date".
(i) Death, Retirement. This Agreement shall terminate at the
death or retirement of Executive. As used herein, the term "retirement"
shall mean Executive's retirement in accordance with and pursuant to
any retirement plan of the Employers generally applicable to Executive
Officers or in accordance with any retirement arrangement established
for Executive with his consent.
If termination occurs for such reason, no additional
compensation shall be payable to Executive under this Agreement except
as specifically provided herein. Notwithstanding anything to the
contrary contained herein, Executive shall receive all compensation and
other benefits to which he was entitled under Section 4 through the
Termination Date and, in addition, shall receive all other benefits
available to him under the Bank's benefit plans and programs to which
he was entitled by reason of employment through the Termination Date.
(ii) Disability. This Agreement shall terminate upon the
disability of Executive. As used in this Agreement, "disability" shall
mean Executive's inability, as the result of physical or mental
incapacity, to substantially perform his employment duties for a
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period of 90 consecutive days. Any question as to the existence of
Executive's disability upon which Executive and Employers cannot agree
shall be determined by a qualified independent physician mutually
agreeable to Executive and Employers or, if the parties are unable to
agree upon a physician within ten (10) days after notice from either to
the other suggesting a physician, by a physician designated by the then
president of the medical society for the county in which Executive
maintains his principal residence. The costs of any such medical
examination shall be borne by the Employers. If Executive is terminated
due to disability, he shall be paid 100% of his Base Salary at the rate
in effect at the time notice of termination is given for one year and
thereafter an annual amount equal to 75% of such Base Salary for any
remaining portion of the Employment Term, such amounts to be paid in
substantially equal monthly installments and offset by any monthly
payments actually received by Executive during the payment period from
(i) any disability plans provided by the Employers, and/or (ii) any
governmental social security or workers compensation program.
If termination occurs for such reason, no additional
compensation shall be payable to Executive except as specifically
provided herein. Notwithstanding anything to the contrary contained
herein, Executive shall receive all compensation and other benefits to
which he was entitled under Section 4 through the Termination Date and,
in addition, shall receive all other benefits under the Employers'
benefit plans and programs to which he was entitled by reason of
employment through the Termination Date.
(iii) Cause. Employers may terminate Executive's employment
under this Agreement for cause at any time, and thereafter their
obligations under this Agreement shall cease and terminate.
Notwithstanding anything to the contrary contained herein, Executive
shall receive all compensation and other benefits in which he was
vested or to which he was otherwise entitled under Section 4, and the
plans and programs provided therein, by reason of employment through
the Termination Date.
For purposes of this Agreement, "Cause" shall mean:
(A) The intentional failure by Executive to substantially
perform assigned duties (appropriate to his position
and level of compensation) with the Bank (other than
any such failure resulting from the Executive's
incapacity due to physical or mental illness) after a
written demand for substantial performance is
delivered to Executive by the Board, which demand
specifically identifies the manner in which the Board
believes Executive has not substantially performed
his duties, advises Executive of what steps must be
taken to achieve substantial performance, and allows
Executive Sixty (60) days in which to demonstrate
such performance;
(B) Any willful act of misconduct by Executive;
(C) A criminal conviction of Executive for any act
involving dishonesty, breach of trust or a violation
of the banking or savings and loan laws of the United
States;
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(D) A criminal conviction of Executive for the commission
of any felony;
(E) A breach of fiduciary duty involving personal profit;
(F) A willful violation of any law, rule or regulation
(other than a traffic violation or similar offenses)
or final cease and desist order; or
(G) Personal dishonesty or material breach of any
provision of this Agreement.
For purposes of this Subsection (5)(iii), no act, or failure to act, on
Executive's part shall be deemed "willful" unless done, or omitted to
be done, by Executive not in good faith and without reasonable belief
that the action or omission was in the best interest of the Employers.
(iv) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time
by giving at least thirty (30) days prior written notice to Employers.
In such event, Executive shall receive all compensation and other
benefits in which he was vested or to which he was otherwise entitled
under Section 4 through the date specified in such notice (the
"Termination Date"), in addition to all other benefits available to him
under benefit plans and programs to which he was entitled by reason of
employment through the Termination Date.
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the
Employers' affairs by a notice served under section
8(e)(3), or section 8(g)(1), of the Federal Deposit
Insurance Act [12 U.S.C. ss. 1818(e)(3) and (g)(1)],
the Employers' obligations under the Agreement shall
be suspended as of the date of service of the notice
unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Employers
shall (i) pay Executive all of the compensation
withheld while their obligations under this Agreement
were suspended, and (ii) reinstate such obligations
as were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Employers'
affairs by an order issued under section 8(e)(4) or
section 8(g)(1) of the Federal Deposit Insurance Act
[12 U.S.C. ss. 1818(e)(4) or (g)(1)], the obligations
of the Employers under the Agreement shall terminate
as of the effective date of the order, but vested
rights of the contracting parties shall not be
affected.
(C) If the Bank is in default as defined in section
3(x)(1) of the Federal Deposit Insurance Act [12
U.S.C. 1813 (x)(1)], all obligations under the
Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights
of the Executive.
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(D) All obligations under the Agreement shall be
terminated, except to the extent determined that
continuation of the contract is necessary for the
Employers' continued operations (i) by the Director
of the OTS, or his or her designee at the time the
FDIC or Resolution Trust Corporation ("RTC") enters
into an agreement to provide assistance to or on
behalf of the Employers under the authority contained
in section 13(c) of the Federal Deposit Insurance
Act; or (ii) by the Director of the OTS, or his or
her designee, at the time it approves a supervisory
merger to resolve problems related to operation of
the Employers or when the Employers are determined by
the Director of the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have
already vested, however, shall not be affected by
such action.
(E) In the event that 12 C.F.R. ss. 563.39, or any
successor regulation, is repealed, this section 5(v)
shall cease to be effective on the effective date of
such repeal. In the event that 12 C.F.R. ss. 563.39,
or any successor regulation, is amended or modified,
this Agreement shall be revised to reflect the
amended or modified provisions if: (1) the amended or
modified provision is required to be included in this
Agreement; or (2) if not so required, the Executive
requests that the Agreement be so revised.
(vi) Other Termination. If this Agreement is terminated (1) by
the Employers other than for cause, death, disability or retirement
(and other than following a change in control as defined in Section 6),
or (2) by Executive due to a failure by Employers to comply with any
material provision of this Agreement, which failure has not been cured
within thirty (30) days after notice of such non-compliance has been
given by Executive to Employers; then following the Termination Date:
(A) In lieu of any further salary payments to Executive
subsequent to the Termination Date, Executive shall
receive Severance Pay for a twelve (12) month period
in accordance with the Employers' normal payroll
practices, beginning with the first pay date
following the Termination Date. The monthly rate of
Severance Pay shall be the monthly Base Salary
received by Executive (based on his highest rate of
Base Salary within the 3 years preceding his
Termination Date) plus one-twelfth of the total bonus
and incentive compensation paid to or vested in
Executive on the basis of his most recently completed
calendar year of employment.
(B) Employers shall maintain and provide for the period
during which Severance Payments are to be made and
ending at the earlier of (i) the expiration of such
period, or (ii) the date of the Executive's full-time
employment by another employer (provided that the
Executive is entitled under the terms of such
employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to
the Executive, the Executive's continued
participation in all group insurance, life insurance,
health and accident, disability and other employee
benefit plans, programs and arrangements in which
Executive was entitled to participate
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immediately prior to the Termination Date (other than
retirement plans, deferred compensation, or stock
compensation plans of the Employers), provided that
in the event Executive's participation in any plan,
program or arrangement as provided in this
subparagraph (B) is barred, or during such period any
such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the
Employers shall arrange to provide the Executive with
benefits substantially similar to those which the
Executive was entitled to receive under such plans,
programs and arrangements immediately prior to the
Termination Date.
(C) In addition to such Severance Pay and continued
benefits, Executive shall receive all other
compensation and benefits in which he was vested or
to which he was otherwise entitled under Section 4
and the plans and programs provided therein by reason
of employment through the Termination Date.
6. Termination by Executive After Change in Control.
(i) Definition "Change in Control". For purposes of this
Agreement, a "change in control" shall mean any change in control with
respect to the Bank or Company that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended ("Exchange Act")
or any successor thereto; provided that, without limitation, a change
in control shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 25%
or more of the combined voting power of the Bank's or Company's then
outstanding securities; or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors of the Bank or Company cease for any reason to
constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period.
(ii) Good Reason for Executive Termination. The Executive may
terminate his employment under this Agreement for "good reason" by
giving at least thirty (30) days prior written notice to the Bank at
any time within twenty-four (24) months of the effective date of a
change in control. Occurrence of any of the following events shall
constitute good reason:
(A) Without the Executive's express written consent,
assignment by the Employers of any duties which are
materially inconsistent with Executive's positions,
duties, responsibilities and status with the
Employers immediately prior to a change in control,
or a material change in the Executive's reporting
responsibilities, titles or offices as in effect
immediately prior to such change in control, or any
removal of the Executive from or any failure to
re-elect the Executive to all or any portion of his
Corporate Position, except in connection with a
termination
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of Executive's employment for cause, disability,
retirement or death (or by the Executive other than
for good reason as defined in this section 6(B)).
(B) Without the Executive's express written consent, a
reduction by the Employers in the Executive's Base Salary as
in effect on the date of the change in control or as the same
may have been increased from time to time thereafter;
(C) The principal executive offices of either of the Employers
are relocated outside of the Milwaukee, Wisconsin metropolitan
area or, without the Executive's express written consent, the
Employers require the Executive to be based anywhere other
than an area in which the Employers principal executives
offices are located, except for required travel on business of
the Employers to an extent substantially consistent with the
Executive's present business travel obligations;
(D) Without Executive's express written consent, the Employers
fail or refuse to continue Executive's participation in
incentive compensation and stock incentive programs comparable
to either (1) those in effect prior to the change in control
or (2) those subsequently in effect for the senior executives
of any acquiring company effecting the change in control;
(E) Without Executive's express written consent, Employers
fail to provide the same fringe benefits provided to Executive
immediately prior to a change in control, or with a package of
fringe benefits (including paid vacations) that, though
individual benefits may vary from those in effect immediately
prior to such change in control, is substantially comparable
in all material respects to such fringe benefits taken as a
whole;
(F) Any termination of Executive's employment by the Employer,
including any purported termination for cause, disability or
retirement not effected in accordance with the notice
requirements of this Agreement; or
(G) The failure by either of the Employers to obtain the
assumption of, or an agreement to perform this Agreement by
any successor as contemplated in Section 7(i) hereof;
(iii) Benefits Upon Termination by Executive After a "Change in
Control". If this Agreement is terminated by Executive for good reason following
a change in control, then following the Termination Date:
(A) In lieu of further salary payments subsequent to the
Termination Date, Executive shall receive Severance
Pay for the longer of (i) the remaining unexpired
term of the agreement as in effect immediately prior
to the Termination Date, or (ii) thirty-six (36)
months. Payments shall be made in accordance with
Employers' normal payroll practices, beginning with
the first pay date following the Termination Date.
Monthly Severance Pay shall be the average monthly
Base Salary received by Executive (based on his
highest rate of Base Salary within the 3 years
preceding his
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Termination Date) plus one-twelfth of the total bonus
and incentive compensation paid to or vested in
Executive, or to which Executive became entitled
(based on the average of such bonus and incentive
compensation for the 3 calendar years preceding his
Termination Date).
(B) Employers shall maintain and provide for the period
during which Severance Payments are to be made and
ending at the earlier of (i) the expiration of such
period, or (ii) the date of the Executive's full-time
employment by another employer (provided that the
Executive is entitled under the terms of such other
employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to
the Executive, the Executive's continued
participation in all group insurance, life insurance,
health and accident, disability and other employee
benefit plans, programs and arrangements in which the
Executive was entitled to participate immediately
prior to the Termination Date (other than retirement
and deferred compensation plans and individual
insurance policies covered under subsection 6(C) or
stock compensation plans of the Employers), provided
that in the event Executive's participation in any
plan, program or arrangement as provided in this
subparagraph (B) is barred, or during such period any
such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the
Employers shall arrange to provide Executive with
benefits substantially similar to those Executive was
entitled to receive under such plans, programs and
arrangements immediately prior to the Termination
Date.
(C) Executive shall also receive all other compensation
and benefits in which he was vested or to which he
was otherwise entitled under section 4 and the plans
and programs provided therein by reason of employment
through the Termination Date. In addition to benefits
to which Executive is entitled under retirement and
deferred compensation plans and individual insurance
policies maintained by Employers (hereinafter
collectively referred to as "Plan"), Executive shall
receive as additional severance benefits a benefit
paid under this Agreement, which benefit shall be
determined in accordance with and paid under this
Agreement, but in the form and at the times provided
in the Plan. Such benefits shall be determined as if
Executive were fully vested under the Plan and had
accumulated (after any termination under this
Agreement) the additional years of credit service
under the applicable Plan that he would have received
had he continued in the employment of the Bank for
the period during which Severance Payments are to be
made and at the annual compensation level represented
by such payments. Such Severance Payment level shall
be deemed to represent the compensation received by
Executive during each such additional year for
purposes of determining his additional benefits under
this Subsection 6(C).
(iv) Limitation of Benefits under Certain Circumstances. If the
severance benefits payable to Executive under this Section 6 ("Severance
Benefits"), or any other payments or
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benefits received or to be received by Executive from Employers (whether payable
pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Employers or any corporation affiliated with the Employers
("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of
1954, as amended (the "Code")), in the opinion of tax counsel selected by the
Employers' independent auditors and acceptable to Executive, constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
the present value of such "parachute payments" equals or exceeds three times the
average of the annual compensation payable to Executive by the Employers (or an
Affiliate) and includible in Executive's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a change in
ownership or control of the Employers occurred ("Base Amount"), such Severance
Benefits shall be reduced, in a manner determined by Executive, to an amount the
present value of which (when combined with the present value of any other
payments or benefits otherwise received or to be received by Executive from the
Employers (or an Affiliate) that are deemed "parachute payments") is equal to
2.99 times the Base Amount, notwithstanding any other provision to the contrary
in this Agreement. The Severance Benefits shall not be reduced if (A) Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6(iv), or (B) in the
opinion of such tax counsel, the Severance Benefits (in its full amount or as
partially reduced, as the case may be) plus all other payments or benefits which
constitute "parachute payments" within the meaning of Section 280G(b)(2) of the
Code are reasonable compensation for services actually rendered, within the
meaning of Section 280G (b)(4) of the code, and such payments are deductible by
the Employers. The Base Amount shall include every type and form of compensation
includible in Executive's gross income in respect of his employment by the
Employers (or an Affiliate), except to the extent otherwise provided in
temporary or final regulations promulgated under Section 280G (b) of the Code.
For purposes of this Section 6(iv), a "change in ownership or control" shall
have the meaning set forth in Section 280G(b) of the Code and any temporary or
final regulations promulgated thereunder. The present value of any non-cash
benefit or any deferred cash payment shall be determined by the Employers'
independent auditors in accordance with the principles of Sections 280G (b)(3)
and (4) of the Code.
In the event that Employers and/or the Executive do not agree with the
opinion of such counsel, (A) Employers shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which in the opinion of counsel may be made without a substantial
risk that such payments and benefits will be treated as non-deductible to the
Employers and subject to the excise tax imposed under Section 4999 of the Code
and (B) Employers may request, and Executive shall have the right to demand the
Employers request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 6 hereof have such consequences. Any such request
for a ruling from the IRS shall be promptly prepared and filed by the Employers,
but in no event later than thirty (30) days from the date of the opinion of
counsel referred to above, and shall be subject to Executive's approval prior to
filing, which shall not be unreasonably withheld. Employers and Executive agree
to be bound by any ruling received from the IRS and to make appropriate payments
to each other to reflect any such rulings, together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments or benefits to
which the Executive may be entitled upon termination
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of employment under any circumstances other than as specified herein or a
reduction in payments and benefits other than those provided in this Section 6.
In the event that Section 280G, or any successor statute, is repealed,
this Section 6 shall cease to be effective on the effective date of such repeal.
The parties to this Agreement recognize that final regulations under Section
280G of the Code may affect the amounts that may be paid under this Agreement
and agreed that, upon issuance of such final regulations this Agreement may be
modified as in good faith deemed necessary in light of the provisions of such
regulations to achieve the purposes of this Agreement, and that consent to such
modifications shall not be unreasonably withheld.
7. General Provisions.
(i) Successors; Binding Agreement.
(A) Employers will require any successor (whether direct
or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the
business and/or assets of the Employers ("successor
organization") to expressly assume and agree to
perform this Agreement in the same manner and to the
same extent that Employers would have been required
to perform if no such succession had taken place or
to re-execute this Agreement as provided pursuant to
section 6(ii)(G). If such succession is the result of
a "change in control" as defined herein, such
assumption shall specifically preserve to Executive,
for the greater of twenty-four (24) months or the
then remaining term of this Agreement, the same
rights and remedies (recognizing them as being
available and applicable as the result of the "change
in control" effectuating said succession) as provided
under this Agreement upon a "change in control".
As used in this Agreement "Employers" shall
mean the Employers as hereinbefore defined (and any
successor to their business and/or assets) which
executes and delivers the agreement provided for in
this Section 7 or which otherwise becomes bound by
the terms and provisions of this Agreement by
operation of this Agreement or law. Failure of the
Employers to obtain such agreement prior to the
effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive,
if he elects to terminate this Agreement, to
compensation from the Employers in the same amount
and on the same terms as he would be entitled to
under this Agreement if he terminated his employment
under Section 6. For purposes of implementing the
foregoing, the date on which any such succession
becomes effective shall be deemed the Termination
Date.
(B) No right or interest to or in any payments or
benefits under this agreement shall be assignable or
transferable in any respect by the Executive, nor
shall any such payment, right or interest be subject
to seizure, attachment
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or creditor's process for payment of any debts,
judgments, or obligations of Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by (1) Executive and
his heirs, beneficiaries and personal
representatives, and (2) the Employers and any
successor organization.
(ii) Noncompetition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential
element of the savings and loan business, that Employers has invested
considerable time and money in his development of such contacts and
relationships, that Employers could suffer irreparable harm if he were
to leave employment and solicit the business of the Employers
customers, and that it is reasonable to protect the Employers against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual
promises contained herein, that in the event of a voluntary termination
of employment by Executive pursuant to Section 5(iii), or upon
expiration of this Agreement as a result of Executive's election (but
not as the result of an election by Employers) not to continue
automatic annual renewals, Executive shall not accept employment with
any Significant Competitor of Bank for a period of twelve (12) months
following such termination. For purposes of this Agreement, the term
Significant Competitor means any financial institution including, but
not limited to, any commercial bank, savings bank, savings and loan
association, credit union, or mortgage banking corporation which, at
the time of termination of Executive's employment, or during the period
of this covenant not to compete, has a home, branch or other office in
Milwaukee County or which has, during the twelve (12) months preceding
Executive's termination, originated, or which during the period of this
covenant not to compete originates, more than $50,000,000 in commercial
or mortgage loans secured by real property in any such county.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Employers and are
reasonably limited as to (i) the scope of activities affected, (ii)
their duration and geographic scope, and (iii) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, the Employers shall be
entitled, in addition to its other legal remedies, to enjoin the
employment of Executive with any Significant Competitor for the period
set forth herein. If Executive violates this covenant and the Employers
bring legal action for injunctive or other relief, the Employers shall
not, as a result of the time involved in obtaining such relief, be
deprived of the benefit of the full period of the restrictive covenant.
Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date such relief is granted, but
reduced by any period between commencement of the period and the date
of the first violation.
(iii) Notice. For purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
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If to the Bank or Company:
St. Xxxxxxx Capital Corporation
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Secretary
If to the Executive:
Xx. Xxx X. Xxxxxxxx
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change
of address shall be effective only upon receipt.
(iv) Expenses. If any legal proceeding is necessary to enforce
or interpret the terms of this Agreement (or to recover damages for
breach of it) in the absence of a change in control, the prevailing
party shall be entitled to recover from the other party reasonable
attorneys' fees and necessary costs and disbursements incurred in such
litigation, in addition to any other relief to which such prevailing
party may be entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement
following a change in control or a re-execution of this Agreement
pursuant to section 6(ii)(G), the only recoverable costs shall be those
which Executive shall be entitled to recover from the Bank (i.e.
reasonable attorneys' fees and necessary costs and disbursements
incurred in such litigation), which fees shall be recoverable only if
the Executive is the prevailing party. Recovery of attorneys' fees and
costs as provided herein following a change in control or re-execution
shall be in addition to any other relief to which Executive may be
entitled.
(v) Withholding. Employers shall be entitled to withhold from
amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes or charges which it is from
time to time required to withhold. Employers shall be entitled to rely
on an opinion of counsel if any question as to the amount or
requirement of any such withholding shall arise.
(vi) Notice of Termination. Any purported termination by the
Employers under Sections 5(i), (ii), (iii) or (iv), or by Executive
under Sections 5(vi) or 6(ii) shall be communicated by written "Notice
of Termination" to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty
(30) nor more than ninety (90) days after such Notice of Termination is
given, except in the case of termination of Executive's employment for
Cause; and (iv) is given in the manner specified in Section 7(iii) of
this Agreement.
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(vii) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or
discharge is agreed to in writing and signed by Executive and such
officers of the Employers as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by either party which are not
expressly set forth in this Agreement and it is agreed that execution
of this Agreement shall result in its superseding and extinguishing any
rights of Executive under any other employment agreement previously in
effect between himself, the Employers, or any of their affiliates. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(viii) Mitigation; Exclusivity of Benefits. The Executive
shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise, nor shall the amount of any
such benefits be reduced by any compensation earned by the Executive as
a result of employment by another employer after the Termination Date
or otherwise.
(ix) Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
(x) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(xi) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(xii) Effective Date. The effective date of this Agreement
shall be the date indicated in the first section of this Agreement,
notwithstanding the actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
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XX. XXXXXXX CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Its: Executive Vice President,
Secretary and General Counsel
ST. XXXXXXX BANK, F.S.B.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Senior Vice President -
Human Resources
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